City, University of London Concedes Important Court of Appeal Case on Procedural Fairness for Student Accused of Sexual Misconduct

In XYZ v City, University of London, City expelled XYZ, a final year student about to sit his exams, with immediate effect, after being found guilty of serious sexual assault following a fundamentally unfair disciplinary process in which the University breached its own Disciplinary Codes. The University has since admitted this, and the case marks a pivotal moment providing significant guidance for future cases.

XYZ attended the University between 2018 and 2022. Between September 2020 and October 2021, he was in a sexual relationship with “the reporting student”. Around February 2022, the reporting student raised an allegation of serious sexual assault against XYZ with the police, which was alleged to have occurred in September 2021. The Claimant was not interviewed, and the police took no further action.

The next month, the reporting student raised the allegation against XYZ with the University. XYZ was called in to a preliminary interview as the first part of a Stage 2 investigation, but given no detail of the allegation. XYZ then attended a Stage 2 investigation meeting, where he was again not told what the allegation was ahead of the meeting. Following a Stage 2 Disciplinary Panel hearing in June, XYZ was expelled with immediate effect, and with no reasoning for the decision upholding the allegation.

XYZ appealed in July 2022, but a decision in a Stage 3 Panel in October upheld the decision, so XYZ remained expelled.

XYZ lodged judicial review proceedings challenging the decision of the Stage 3 Panel. The University disputed all grounds and relied on XYZ having available to him the alternative remedy of taking his complaint to the Office of the Independent Adjudicator for Higher Education (‘the OIA’) an adequate alternative remedy to judicial review.

XYZ challenged the University’s decision by judicial review, which then went up to the Court of Appeal. Permission to appeal to the Court of Appeal was granted by Lord Justice Coulson in July 2023 on the grounds of a breach of a procedural legitimate expectation and the failure to give adequate reasons.

Coulson LJ considered that it was, “arguable that the original (very serious) allegations may not have been made clear to the appellant before he was interviewed and where the reasons for the original decision by the Stage 2 panel … were, on any view, extremely meagre. The judge [at oral renewal] not only said that this latter point was “probably the strongest of the Grounds”, but also did not explain why she was not persuaded that it was arguable”.

An appeal hearing was listed in February 2024, at which the Court of Appeal (available to watch here) determined that the OIA is not necessarily an adequate alternative remedy in cases where there are allegations of sexual violence against University students, and that the issue needed to “be seen in full context and [was] not a purely arid question of law that can safely or properly be disposed of separately.”

The University has since conceded the case, agreeing to pay XYZ’s legal costs, just days before the Court of Appeal hearing due to be held in May 2024. The University agreed that it had breached its own procedures and provided inadequate reasons when it found XYZ guilty of sexual misconduct and expelled him with immediate effect.

In the detailed statement of reasons, the University acknowledged that the disciplinary process followed in XYZ’s case was flawed in its breach of its own regulations by failing to provide the Claimant with details of the allegations against him ahead of his interview and in the failure to provide adequate reasons in upholding allegations of serious sexual misconduct.

In conceding the appeal, the University agreed to withdraw the Stage 3 Panel decision entirely, to reconsider the Claimant’s case afresh at Stage 2 of the disciplinary process, and to reinstate XYZ. XYZ will continue with his remaining module pending the outcome of the consideration of any further disciplinary proceedings, if started afresh.

The expulsion just before XYZ had completed his degree and the contested litigation, which was drawn out until days before the final hearing, have had a significant adverse impact on XYZ’s mental health and career. XYZ commented that he and his family are “wrestling with not inconsequential psychological and financial impacts of the 2+ years of proceedings.”

The impact of the passage of time on the University adjudicating on an allegation going back to September 2021 remains to be seen. That said, the case marks a pivotal moment, providing significant guidance for future cases.

The oral ruling of the Lady Chief Justice at an earlier hearing and the agreed statement of reasons provides useful guidance for students – both those accused and those reporting – and universities grappling with difficult issues arising from investigations into allegations of sexual misconduct made against University students.

Victoria Denis, Solicitor at IBB Law who represented XYZ, says,

This case highlights the urgent need for review in University policies and procedures relating to sexual misconduct. A fair procedure is the bare minimum for students to expect. This is for the benefit of both those accused and reporting sexual misconduct alike.

Transparent procedural practices provide students with the certainty that their cases are being handled with the utmost discretion and impartiality. Students should be clear about the allegations they are facing and should not be presumed guilty in absence of a coherent policy or procedure.

Fairness in these procedures not only uphold the public law rights of the accused but also fortifies the integrity of the academic institutions entrusted with shaping the minds of young adults.

This case has changed the trajectory of our client’s life, and no doubt the same could be said for others undergoing similar disciplinary procedures. This extends far beyond mere expulsion from education. It directly influences all subsequent pursuits associated with their degree, adding to the considerable physical and mental strain endured.

Universities must implement policies and procedures that do not inherently infantilise reporting students or vilify the accused. In so doing, universities must also present a venue in which students’ cases are handled compatibly with their public law rights.

Contact our Education Law experts

IBB is a UK law firm specialising in education law. For more information, please contact Victoria Denis on 01895 207230 or email educationteam@ibblaw.co.uk.